Kids’ Social Security Benefits When Parents Live Apart

If you and your spouse get divorced, and your spouse collects Social Security benefits, how does that income fit into the picture? Does it affect how much one spouse may owe in child support? The answer is yes — a spouse’s Social Security benefit generally counts toward his or her income, and this may be significant in terms of paying child support.

• Divorce, including the matter of child support, is a state issue, and the laws vary widely.
• Even more important, you’re bound by the court order setting the terms of your divorce.

You should be aware of certain rules if you end up in a dispute with a former spouse over Social Security benefits. Social Security benefits generally count toward the income of the worker who has earned them. In many states, this means that if a child receives Social Security benefits as a dependent of a noncustodial parent, those benefits may count toward the parent’s child-support payment. This sort of situation can arise, for example, if a noncustodial parent begins collecting Social Security disability or retirement benefits and the child gets auxiliary benefits.

Suppose you’re a dad who owes child support of $800 per month, but your child is getting $400 per month in Social Security benefits based on your earnings record. If your state allows a complete offset, you would’ve paid half of your $800 obligation through Social Security and still owe another $400. (Some states may allow less than a dollar-for-dollar offset. In other words, $400 of Social Security benefits would reduce a child-support obligation by a lesser amount. Other states leave more discretion to the judge, based on the child’s need.)

If you’re paying child support, be aware that your Social Security benefit can be garnished if you fall behind. (The same is true for delinquent alimony payments.) These are among the few exceptions to the general protection for Social Security against garnishment. The fact that Social Security may be garnished for delinquent child support and alimony is also a notable difference between Social Security and Supplemental Security Income (SSI). SSI generally can’t be garnished.

Divorced parents also may get into conflicts if a child is potentially eligible for dependent Social Security benefits based on the record of a noncustodial parent but that parent declines to apply for those benefits. The uncooperative parent may fear — incorrectly — that dependent benefits will reduce the parent’s amount. Or he or she may be avoiding the SSA for other reasons, such as not wanting his or her earnings scrutinized.

The SSA says it tries to help with an application for a child’s benefit (based on the record of the noncustodial parent) even when that parent doesn’t cooperate. The custodial parent should provide proof of the child’s age and relationship to the other parent and, if possible, the other parent’s Social Security number. (Anecdotally, such applications sometimes face an uphill climb.)

If a divorced parent potentially qualifies for benefits but hasn’t applied (maybe he’s over age 62 but hasn’t claimed his retirement benefits), the child isn’t eligible for dependent benefits. This is different from the way a dependent former spouse is treated. The SSA allows such a former spouse to file for spousal benefits at age 62, even if the ex — on whose record the spousal benefits are based — hasn’t claimed benefits (if the divorce has lasted two years).

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